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EXHIBIT 2.3
AMENDMENT NO. 2
TO
STOCK PURCHASE AGREEMENT
AMENDMENT No. 2 dated as of August 25, 1997 (this
"Amendment"), by and among Xxxxxxxxx Broadcasting, Inc., a Delaware corporation
(the "Company"), Capstar Acquisition Company, Inc., a Delaware corporation
("Buyer"), and The Xxxxx-Xxxxxxx-Xxxxx Corporation, a Delaware corporation, as
representative of the stockholders of the Company (the "Stockholders'
Representative"), to the Stock Purchase Agreement dated as of June 12, 1997, as
amended by Amendment No. 1 dated as of July 2, 1997 (as amended, the "Purchase
Agreement"), by and among Buyer, Capstar Broadcasting Partners, Inc., a
Delaware corporation, the Company, the Stockholders' Representative and each of
the persons identified on Schedule I thereto (the "Selling Stockholders").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
W I T N E S S E T H
WHEREAS, the parties hereto have entered into the Purchase
Agreement pursuant to which, among other things, the Selling Stockholders have
agreed to sell, and the Buyer has agreed to purchase, the Shares and the Series
A Preferred Shares; and
WHEREAS, the parties hereto desire to amend certain of the
provisions of the Purchase Agreement as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I.
AMENDMENT TO PURCHASE AGREEMENT
1.01 The parties hereto acknowledge and agree that
Schedule 3.1(j) of the Purchase Agreement is hereby amended by adding the
following paragraph (7) at the end thereof:
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"7. Xxxxxxxxx Fresno Broadcasting Corp.
(a) The real property located in Dinuba, Tulare
County, California as described in attachment
3.1(j)-P hereto.
(b) The real property located in Tulare County,
California as described in attachment
3.1(j)-Q hereto."
1.02 The parties hereto acknowledge and agree that
Paragraph 1 of Schedule 3.1(k) of the Purchase Agreement is hereby amended by
adding the following subparagraph (c) at the end thereof:
"C. KJOI-FM & KRDU-AM
(1) Commercial Lease Agreement dated September 1,
1989, as extended as of November 12, 1996, by
and among Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx X. Xxxxxxx as trustee for Xxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxx and Radio Dinuba
Company (tower located at Xxxxx Point, Tulare
County, California)."
1.03 The parties hereto acknowledge and agree that
Paragraph A(8) of Schedule 3.1(p) of the Purchase Agreement is hereby amended
by adding the following subparagraphs (b), (c) and (d) at the end thereof:
"b. Employment Agreement dated November 21, 1995 between
Radio Dinuba Company and Xxxxxxx Xxxxxxxx (employee
may be able to enforce the contract for the remainder
of the term if terminated without cause).
c. Employment Agreement dated November 21, 1995 between
Radio Dinuba Company and Xxxxxx Xxxxxxxx (employee
may be able to enforce the contract for the remainder
of the term if terminated without cause).
d. Consulting Agreement dated as of July 31, 1997
between Xxxxxxxxx Fresno Broadcasting Corp. and Xxxxx
X. Xxxxx (xxxxxxxxx of remaining compensation under
the term if terminated other than as a result of
death or disability)."
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1.04 The parties hereto acknowledge and agree that
Paragraph B(1) of Schedule 3.1(p) of the Purchase Agreement is hereby amended
by adding the following subparagraphs (aaa), (bbb), (ccc) and (ddd) at the end
thereof:
"aaa. Promissory Note dated June 17, 1997 issued by
Xxxxxxxxx Pensacola Licensee Corp. in favor of the
Company in the principal amount of $3,699,407.20.
bbb. Promissory Note dated June 17, 1997 issued by
Xxxxxxxxx Xxxx Broadcasting Inc. in favor of
the Company in the principal amount of
$1,900,592.80.
ccc. Promissory Note Date July 31, 1997 issued by
Xxxxxxxxx Fresno Broadcasting Corp. in favor
of the Company in the principal amount of
$3,424,800.00.
ddd. Promissory Note dated July 31, 1997 issued by
Xxxxxxxxx Fresno Licensee Corp. in favor of
the Company in the principal amount of
$1,375,200.00."
1.05 The parties hereto acknowledge and agree that
Paragraph B(1)(s) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by deleting such Paragraph B(1)(s) in its entirety and replacing it
with the following Paragraph B(1)(s):
"s. Second Amended and Restated Management Agreement
dated as of July 31, 1997 between Xxxxxxxxx Fresno
Broadcasting Corp. and Xxxxxxxxx Fresno Licensee
Corp."
1.06 The parties hereto acknowledge and agree that
Paragraph B(1)(u) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by deleting such Paragraph B(1)(u) in its entirety and replacing it
with the following Paragraph B(1)(u):
"u. Second Amended and Restated Management Agreement
dated as of June 17, 1997 between Xxxxxxxxx Pensacola
Licensee Corp. and June Broadcasting, Inc."
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1.07 The parties hereto acknowledge and agree that
Paragraph B(8)(c) of Schedule 3.1(p) of the Purchase Agreement is hereby
amended by adding the following subparagraphs (5), (6), (7), (8) and (9) at the
end thereof:
"(5) Local Station Blanket Radio License Agreement
effective January 1, 1996 between ASCAP and
Radio Dinuba Company (KJOI-FM).
(6) Local Station Blanket Radio License Agreement
effective January 1, 1996 between ASCAP and
Radio Dinuba Company (KRDU-AM).
(7) 1997 BMI Radio Station Interim License
Agreement effective January 1, 1997 between
BMI and Radio Dinuba Company (KJOI-FM).
(8) 1997 BMI Radio Station Interim License
Agreement effective January 1, 1997 between
BMI and Radio Dinuba Company (KRDU-AM).
(9) Radio Broadcasting Performance License
Agreement effective as of August 4, 1997
between SESAC, Inc. and Xxxxxxxxx Fresno
Broadcasting Corp. (KJOI-FM).
(10) Radio Broadcasting Performance License
Agreement effective as of August 4, 1997
between SESAC, Inc. and Xxxxxxxxx Fresno
Broadcasting Corp. (KRDU-AM).
(11) Station License to Receive and Use Arbitron
Radio Listening Estimates effective April 1,
1995 between Arbitron and Radio Dinuba
Company (KJOI-FM & KRDU-AM)."
1.08 The parties hereto acknowledge and agree that
Paragraph C of Schedule 3.1(q) of the Purchase Agreement is hereby amended by
adding the following subparagraph (33) at the end thereof:
"(33) Incentive Plan for Xxxx Xxxxxx (KJOI-FM &
KRDU-AM)."
1.09 The parties hereto acknowledge and agree that Section
1.1 of the Purchase Agreement is hereby amended
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by deleting the definition of "Existing Title Policies" set forth in such
Section 1.1 and replacing such definition with the following:
"Existing Title Policies" means the title insurance
policies listed in Schedule 3.1(i) hereto, Title Insurance
Policy (no. 449195 GL) issued by Chicago Title Insurance
Company to Xxxxxxxxx Fresno Broadcasting Corp. with respect to
certain real property located in Dinuba, Tulare County,
California and Title Insurance Policy (no. 449195-A GL) issued
by Chicago Title Insurance Company to Radio Dinuba Company
with respect to certain real property located in Tulare
County, California."
ARTICLE II.
MISCELLANEOUS
2.01 Invalidity, Etc. If any provision of this Amendment,
or the application of any such provision to any person or circumstance, shall
be held invalid by a court of competent jurisdiction, the remainder of this
Amendment, or the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected thereby.
2.02 Governing Law. This Amendment shall be interpreted,
construed, and enforced under and according to the laws of the State of New
York.
2.03 Recitals. The recitals set forth in the "Whereas"
clauses in this Amendment are true and correct and are hereby incorporated
herein by reference and made a part of the Purchase Agreement as amended
hereby.
2.04 Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
2.05 Ratification. The parties hereto hereby ratify and
approve the Purchase Agreement, as amended hereby, and the parties hereto
acknowledge that all of the terms and provisions of the Purchase Agreement as
amended hereby, are and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
BUYER:
CAPSTAR ACQUISITION COMPANY, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
THE COMPANY:
XXXXXXXXX BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
THE STOCKHOLDERS' REPRESENTATIVE:
THE XXXXX-XXXXXXX-XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
